To protect Bank of America from inconvenience, Charlotte, North Carolina has directed its police officers to harass and arrest protesters. Unconstitutionally, in my opinion.

Charlotte Sides With Bank of America Over People

Charlotte has imposed special rules on a 2 block by 2 block square for 12 hours on Wednesday (May 9) to protect the Bank of America annual shareholder meeting from disruption by protesters. The rules apply to any “Extraordinary Event”, and were adopted nominally for the coming Democratic National Convention and city celebrations such as July 4.  While the rules are poorly drafted and I believe facially unconstitutional regardless, imposing them for the BofA meeting seems overwhelmingly so. Extra restrictions for the July 4th celebration in the name of public safety is one thing; it’s an outdoor, public event hosted by the city for the benefit of its citizenry. The Democratic Convention is similarly easy to rationalize, given that the President and other national security targets will be there. But Bank of America’s shareholder meeting?

This annual corporate event is private, indoors, and part of ordinary corporate business. Worse, law enforcement’s targets aren’t potential Presidential assassins or hooligans with a stash of illegal fireworks; they’re peaceful political protesters. Heck, the protesters will include dissident shareholders and their proxies who have every right to be at the meeting. Besides, BofA will have home field advantage: the meeting’s at its corporate headquarters.

The recent experience of shareholder protests at Wells Fargo shows Bank of America executives, employees and shareholders are not in danger of anything except inconvenience. Nor did San Francisco police need special powers to handle the situation outside, while Wells handily managed the situation indoors. CEO John Stumpf’s pay package was approved in record time.

Why is Charlotte helping BofA?

Unfettered Police Discretion to Target “Undesirables”

The establishment has always tried to silence dissent and enforce the social order by policing protesters as “disorderly” undesirables. During African-Americans’ civil rights struggles, Southern cops would arrest protesters using statutes that essentially let them pick their targets at will. The Supreme Court responded by saying unfettered police discretion is unconstitutional.

Unfortunately, in the ensuing decades, the Supreme Court’s doctrine around political speech has degraded into a blunt weapon for enforcing the social justice status-quo, empowering the establishment to marginalize dissenting voices and magnify corporate speech. For example, protesters get penned into irrelevant, out of the way “Free Speech Zones” and corporations get unlimited freedom to spend money to elect their favorite “representatives.” (One of the banks’ more effective purchases has been Congressman Spencer Bauchus (R-AL), who chairs the House Financial Services Committee and who has publicly said that Washington exists to serve the banks.) In a way, the city’s imposition of the new rules for BofA’s benefit is just a step further down the line toward deploying state power against citizens for corporate benefit toward corporations directly deploying state power against citizens. It is an act of deploying state power against citizens for corporate benefit, not a step down the line towards that.

How? Well, the rules render anyone near the Bank of America shareholder meeting criminally suspect for normal, harmless activities. As a result the new rules appear to give the police unlimited discretion to stop, frisk, arrest and search people–harass people–for nothing more than officers’ preconceived biases. Profiling.

Normally “profiling” means “racial profiling”, which is unconstitutionally stopping, frisking and/or searching someone because he’s black. Constitutionality hinges on how much right a cop had to be suspicious. Being black is inherently suspicious to many cops, but racism isn’t a Constitutional basis for suspicion. Since race isn’t a proxy for protester status, what the new rules do is encourage “First Amendment Profiling”–targeting people for looking like protesters.

Rule Specifics

(As I detail what’s wrong with the rules, you can read along. The rules are codified in the City’s code at Chapter 15, Article XIV, Section 15-310 and seq. This link is easier to use, however.)

For example, a person can be arrested for walking his dog near in the prohibited zone. Although this Charlotte blog claims residents needn’t worry, here’s the rule:

“During the period of time and within the boundaries of an extraordinary event, it shall be unlawful for any person, other than governmental employees in the performance of their duties, to willfully or intentionally possess, carry, control or have immediate access to any of the following:

…(17) An animal unless specifically allowed under the terms of a [parade permit] or is a service animal used to assist a person with a disability.”

Maybe the blog is confident the police will “know” who they’re supposed to target, and that residents will be able to walk around unmolested. But that’s the kind of unlimited police discretion that’s unconstitutional.

Dog walking isn’t the only innocent activity rendered suspect.

People also can’t possess or have accessible “(5) A backpack, duffle bag, satchel, cooler or other item…” if they have “the intent to conceal weapons or other prohibited items”. Well, unless one’s bag is transparent and nearly empty, a person using it plausibly has the intent to “conceal” whatever is inside. So how well that intent requirement limits police discretion to arrest you for having a bag hinges on what’s prohibited. Too bad the prohibited items include permanent markers (list of banned items at (4).)

Permanent markers are so ordinary (see this Google shopping list) and so small that a cop might reasonably believe that anyone with a purse, briefcase or backpack is carrying a concealed permanent marker. That means anyone carrying any kind of bag or container is suspect. Where is the limit on police discretion?

Specifically, what guides the cop in deciding whether to ask a purse-carrying woman for permission to search her purse? If she says no, what stops him from arresting her? When the wrongdoing is possessing a Sharpie, what facts could rise to enough suspicion that he doesn’t need to ask to search? Is it enough that she’s dressed like an office worker?

Also banned are Snapple bottles possessed with bad intent. Specifically, “(6) A glass or breakable container capable of being filled with a flammable or dangerous substance carried with the intent to inflict serious injury to a person or damage to property.” Will a cop think “sure, he’s just drinking the Snapple now, but he’s a protester, young, dressed in black with a pierced nose; looks angry. Maybe he’ll use the empty to make a Molotov cocktail. Better arrest him”?

Bike helmets are prohibited too, if “(10)…carried or worn with the intent to delay, obstruct or resist the lawful orders of a law enforcement officer”. What does carrying a bike helmet with “the intent to delay…the lawful orders of a law enforcement officer” mean? (“Delay” must be different from “obstruct” or “resist” since all three are prohibited.) Perhaps it targets a woman who inexplicably plans on shoving a bike helmet onto a cop’s face, catcher’s mask style, as soon as he speaks starts to speak. Maybe it means she intends to keep dropping it and picking it up to try and slow walk the arrest process. How do you use a bike helmet to delay (but not obstruct or resist) the lawful orders of a law enforcement officer?

How should a bicyclist carry a bike helmet so she can convey only lawful intent? By studiously avoiding looking at the cop? By clutching it extra tightly? Couldn’t both of those be suspicious too?

To fully explore the rules’ absurdity, read them at the links above. The bottom line is this: for twelve hours, within a two block buffer zone around BofA headquarters, the City of Charlotte, North Carolina has told its police that any person carrying a purse, backpack, cooler, briefcase, bike helmet, Sharpie, and much else is suspect. If the suspects look like protesters, then Charlotte wants the cops to stop, question, perhaps frisk, perhaps search, and perhaps arrest them.

These Rules Can’t Be Constitutional

I’m not reading between the lines; the city’s explicit about targeting protesters. Speaking with station WCNC, the city reassured residents that while they might be stopped and questioned, only protesters would be targeted for punishment:

CMPD Deputy Chief Harold Medlock said the main benefit to the designation is that it allows police officers to “interact” more with people.

For example, if a person or group of people walks down the street with [prohibited items], an officer can’t normally do much about it, Medlock said.

But with the extraordinary events designation, “It gives us the ability to come up and say, ‘Hey, where are you going with this?’” Medlock said. “If they tell us they’re going to the protest, we’ll tell them ‘No, you’re not.’” (bold mine)

Note: I took out the word “crowbars” and put “[prohibited items]” in, because “crowbars” is misleading. The power exists, and can be used, for far more innocuous items. Deputy Chief Medlock uses “crowbars” to reassure people that the police are limited in sensible ways, when they’re not. For more on how the rules are aimed at protesters, see this Charlotte Observer article. Even the “residents can walk their dogs without fear” blog was clear on the point.

While I think the new rules are unconstitutionally vague on their face, how could they be constitutional as applied to defend BofA against protesters?  Perhaps in the July 4th context Charlotte can claim the rules regulate conduct, not speech, but the fact that on Wednesday cops will targeting protesters as protesters makes it seem the rules are aimed at speech. Worse; they’re aimed at certain speakers.

If the rules are read as speech regulations, they seem even more clearly unconstitutional. The protesters are all anti-BofA, so isn’t enforcement content-based? Since disorderly conduct, trespass and other statutes could enable arrests for truly problematic protester conduct, how are the new rules “narrowly-tailored”? And what’s the compelling state interest being furthered? We haven’t yet reached the level of corporatism where preventing inconvenience to BofA can be called a compelling state interest.

We haven’t yet.